SARJOO PROSAD, C. J.—These are three appeals by Roshanlal Arora and 13 others from the decision of a learned Single Judge of this Court dated the 1st of Dec.,1959 allowing the three writ petitions of Udaram, Gauri Shanker and Keshrichand and setting aside the election of the 24 elected members of Ganganagar Municipal Board and the nomination of two nominated members and further directing the State to hold a fresh general election as early as possible in accordance with law. As all the three appeals arise out of the same judgment and as they raise common questions for determination, they are being dealt with together.

2. Udaram, Gaurishanker and Keshrichand filed three writ petitions No. 269, 295 and 302 of 1959 on the 1st, 8th and 19th of August, 1959 respectively, alleging inter alia that the provision of sec. 10 of the Rajasthan Town Municipalities Act, 1951 (Act No. XXIII of 1951, hereinafter referred to as the Act) is mandatory and that as no notification was published by the Government or the Collector under sec. 10 of the Act fixing the number of members of the Municipal Board, and delimiting wards, the elections of 24 members held in the year 1959 and nominations of two members by the Government were invalid.

3. The State of Rajasthan, the Collector of Ganganagar and the elected and the nominated members of the Municipal Board were impleaded opposite parties in all the three cases. The respondents No.3, 4, 6, 10, 11, 13, 14, 16, 17, 20, 21 and 22 supported the cases of the petitioners and the remaining respondents contested them. The contesting respondents pleaded that the Collector constituted the wards under sec. 10 of the Act by his order dated the 28th of April, 1959 which was published by affixation on the notice board of the Collectors office and also of the office of the Municipal Board and that in the alternative an order under sec. 10 of the Act that was published at the time of the general election to the said Municipal Board in the year 1955 survived and the elections and nominations of members to the Boards were, therefore, not invalid. It was also pleaded that sec. 10 of the Act was not mandatory and that an alternative remedy under sec. 19 of the Act was available and the petitioners had, therefore, no case under Art.226 of the Constitution.

4. The learned Single Judge held as follows: —

(1) The order bearing the date 28th April, 1959 was not passed till election was over and even assuming for the sake of argument that the said order was made by the Collector, it was not valid and effective for—

(a) the Collector did not purport to issue a fresh notification as contemplated by sec. 10 after applying his mind to the question of delimiting the existing area of the municipality,

(b) it was not published properly so much so that even the Returning Officer and the Executive Officer of the Board were not aware of the fact that any such order had been passed,

(c) it took no notice of the areas subsequently added to the Municipal limits and also the premise that were built after the year 1955 in such of the wards as were described by naming the premises without giving their boundaries.

(2) The order passed by the Collector in 1955 fixing the total number members of the Board both elected and nominated and delimiting wards, was confined in its operation to the elections held in the year 1955 and it did not survive and there was, therefore, no order by the Collector determining the total number of wards, fixing the number of elected and nominated members and delimiting the constituencies for the election of members held in the year 1959, as contemplated by sec. 10 of the Act.

(3) The provision of sec. 10 of the Act is of mandatory nature, a breach whereof renders the subsequent proceedings relating to the election and nomination of the members void. An order under section 10 is a pre-requisite condition which must exist prior to the preparation and publication of the list of voters.

(4) The provision of sec. 19(5) cannot heal

Click Here to Read the rest of this document